Owen Hale, Respondent, v. Alexander G. Patton, Appellant

Owen Hale, Respondent, v. Alexander G. Patton, Appellant. Where, by the terms of a bond the principal becomes due at the option of the obligee, in case the interest remains due and unpaid for thirty days, in case no place of payment is specified, if the obligee is absent from the State at and prior to the termination of the thirty days, a readiness on the part of the obligor to pay the interest within the State will save the forfeiture. Plaintiff, an unmarried man, who resided with his mother within this State, held defendant’s P.’s bond so conditioned. Eight days after, an installment of interest became due, plaintiff left the State and remained absent during the residue of the thirty days. Held, that there was no apparent authority in the mother or any person at her residence, to receive the interest; that if such authority had been given, defendant was entitled to notice; and that plaintiff having left the' State without giving such notice, P. was not required to tender the interest at the residence of the mother. (Argued February 17, 1875; decided March 23, 1875.) As to whether, if the absent obligee has a house of his own within the State where he resides; it is the .duty of the obligor to make a tender there, quaere. Appeal from judgment of the General Term of the Supreme' Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon the decision of the Court at Special Term. This action was brought for the foreclosure of a mortgage executed by defendant Patton to plaintiff upon certain premises in the city of Troy. The mortgage was given to secure a bond for the sum of $4,000, dated October 15th, 1870, payable January 1st, 1876, interest payable semi-annually, January first and July first of each year. It contained a condition that in case any interest moneys should remain due and unpaid for thirty days the whole principal sum should, at the option of the obligee, become due and payable. Patton did not pay the installment of interest falling due January 1st, 1873. Plaintiff was an officer in the United States army; he was unmarried, and made it his home with his mother in Troy. He was stationed with his regiment in South Carolina. He came to his mother’s residence in December, 1872, and there remained until January 8th, 1873, when he returned to his regiment, and was not within this State from the time of his leaving until December, 1873. The court found that at the time plaintiff left the State, and during the whole of the month thereafter, Patton had the money and was ready and willing to pay the interest. That about January 15th, 1873, Patton took the money and went to the residence of plaintiff’s mother for the purpose- of paying said interest to her if she had the authority to receive it, but was informed by the servant at the door that the mother was too sick to be seen or to do any business. On the 3d day of February, 1873, Patton offered to pay said interest to one of the attorneys for the plaintiff in this action, who declined to receive it, because he was not then authorized to do so. The interest due was paid into court by Patton. The court found the whole amount of principal and interest to be due and directed the usual judgment of foreclosure, which was entered accordingly. E. F. Bullard for the appellant. Defendant was not bound to follow plaintiff out of the State to pay the interest. (2 Cow. Treat., 802 [ed. 1841], 2 Penn., 71; Bac. Ab. Tender [C.]; 2 Chit. Pldgs., 431, 433, 498 ; Hills v. Place, 48 N. Y., 520, 523; Taylor v. Snyder, 3 Den., 145 ; 52 N. Y., 273; Mesarole v. Archer, 3 Bosw., 376; 1 Harr. Dig., 1858; Eaton v. Lyon, 3 Ves. Jr., 692.) Defendant was entitled to proof of authority before paying to an agent. (Tuttle v. Gladding 2 E. D. S., 57; Monnot v. Ibert, 33 Barb., 26; Thurber v. Corbin, 51 id., 215.) Defendant’s visit to the residence of plaintiff’s mother with the money was a good tender in equity. (Hills v. Place, 48 N. Y., 523; Scott v. Stevenson, 2 Hill, 328 ; Manning v. Burges, 1 Ch. Cas., 29; Perkins v. Beach, 4 Cranch, 68; Howard v. Holbrook, 9 Bos., 241; Hargons v. Lahans, 3 Sandf., 213, 218; Judd v. Ensign, 6 Barb., 263; Bingham v. Allpart, 1 Nev. & M., 398 ; Morton v. Wells, 1 Tyler, 381; Kendall v. Talbott, 1 A. K. Marsh., 321; Strong v. Blake, 46 Barb., 228; Smith.v. Smith, 25 Wend., 407.) Martin I. Townsend for the respondent. Plaintiff’s absence from the State did not relieve defendant from the necessity of tendering the money. (Smith v. Smith, 25 Wend., 406 ; 2 Co. Litt., 55, § 304; 1 Chan. Cas., 29; 6 Bac., 450; Let. Tender; 2 Hill, 351; 2 Cow. Treat, [ed. 1841], p. 802; Judd v. Ensign, 6 Barb., 258; Morton v. Wells, 1 Tyler, 381; Kendall v. Talbot, 1 A. K. Marsh., 321; Johnson v. Hart, 3 J. Cas. in Er., 329.) [MAJORITY — Andrews, J.] Andrews, J. The default in the payment of interest due January 1, 1873, did not accelerate the time of payment of the principal sum due on the mortgage, unless it continued for thirty days thereafter. The defendant, by payment of the interest due at any time within that period, would be entitled to the benefit of the contract in respect to the credit given for the payment of the mortgage debt. The payment of the interest due within the specified time was the only circumstance which, by the terms of the mortgage, would prevent the condition from attaching and the whole debt from becoming presently due. But the performance of a condition of a bond or other obligation is excused by the default of the obligee, or his absence, when his presence is necessary for the performance, or when by his act or omission it can be said that he prevented performance. (Com. Dig., “ Condition,” L. 4, 5, 6; Bryant v. Beattie, 4 Bing. N. C., 254, 263.) In general a debtor, who is indebted on a money obligation, is bound, if no place of payment is specified in the contract, to seek the creditor and make payment to him personally. But this rule is subject to the exception that if the creditor is out of the State when payment is to be made, the debtor is not obliged to follow him, but readiness to pay within the State in that case will be as effectual as actual payment to save a forfeiture. (Co. Litt., 304, 2; Smith v. Smith, 25 Wend., 405; Allshouse v. Ramsey, 6 Whart., 331; South-worth v. Smith, 7 Cush., 391; Tasker v. Bartlett, 5 id., 359.) The judge, before whom the. case was tried, found that the plaintiff was absent from the State from the 8th of January, 1873, and that the defendant, during the whole of that month, had the money and was ready and willing to pay the interest. This, within the general rule, excused the defendant from actual performance of the condition. He had the whole month in which to make the payment to save the forfeiture. There is, however, the additional finding that the plaintiff had a residence in Troy during the whole time, and the proof shows that lie was an officer in the army, and unmarried, and made it his home at the residence of his mother in that city, where it had been from his childhood. It is also found that in January, after the plaintiff left the State, the defendant went to the residence of the plaintiff’s mother for the purpose of paying the interest to her, if she had authority to receive it, but was informed by the servant at the door that the mother was sick and unable to be seen, or to do any business. The defendant did not make his business known, but left on receiving information of the mother’s illness. It is claimed by the counsel for the plaintiff, that, although a creditor is absent from the State when a payment is due, if he has a house therein where he resides, it is the duty of the debtor to tender the money there, or otherwise his obligation is not discharged. How this may be, as a general rule, we do not now decide, but we think that no such duty rested upon the defendant in this case. Payment or tender to be valid must be made to the creditor, or to some person duly authorized to receive it, or to one who, although he may have no actual authority, has an apparent authority to act for the principal. (Bouv. L. Dic., Tit. “ Tender;” 2 Pars. on Cont., 615; Bingham v. Allport, 1 N. & M., 398; Kirton v. Braithwaite, 1 M. & W., 310.) It does not appear whether any person was authorized by the plaintiff to receive the interest. It was shown that no written authority had been given. Payment to one authorized by parol to receive it would doubtless be good, but the debtor was not bound to part with his money to a third person without satisfactory evidence of his authority. Heither the mother or any person at the mother’s residence had any apparent authority to receive the interest. It was not the son’s house, and the persons there were not his servants or agents. If the plaintiff desired that the money should be paid to his mother, he should have notified the defendant that she was authorized to receive it, and having left the State without doing so, the defendant was not obliged to.tender the money at her residence. The case of Tasker v. Bartlett supports this conclusion. The judgment should be reversed, with costs to abide the event. All concur;. Miller, J., not sitting. Judgment reversed.